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Hébert: Supreme Court the next Quebec-Ottawa battleground

Stephen Harper will soon be filling a Quebec vacancy on the Supreme Court. If there ever was a time when the PM needs to recruit a Quebec judicial star with an impeccable reputation for judicial independence, it is now. Canada&rsquo;s top court may be about to see a lot of Quebec-Ottawa action.

MONTREAL—Prime Minister Stephen Harper will soon be filling a Quebec vacancy on the Supreme Court bench. It may be his most critical judicial appointment to date and not only because he will have picked a majority of the nine members of the court by that point.

If there ever was a time when the prime minister needs to recruit a Quebec judicial star with an impeccable reputation for judicial independence, it is now. Canada’s top court may be about to see a lot of Quebec-Ottawa action.

That would be true even if Liberal Leader Jean Charest beat the odds and secured a fourth mandate next month.

The province is already in court to secure the federal gun registry data pertaining to Quebec and it has asked the Quebec Court of Appeal to pronounce on the constitutionality of Harper’s Senate reform bill.

If the Parti Québécois wins the Sept. 4 election, it will pursue those Liberal legal battles to the finish and add quite a few more to the list.

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At a time when 71 of the 75 Quebec MPs belong to federalist parties, the Supreme Court rather than the House of Commons is lining up to be the PQ’s preferred federal stage for its next bid to win over Quebecers to sovereignty.

Pauline Marois’s platform is replete with commitments that would put a PQ government on a straight collision course with the Charter of Rights and Freedoms.

They include:

• A two-tier Quebec citizenship act that would oblige non-francophone newcomers to the province to demonstrate a capacity to function in French prior to running for municipal or provincial office.

• The adoption of a charter to affirm the secular character of the province and confer gender equality precedence over other rights such as religious freedom.

• An extension of the education restrictions of Bill 101 to the post-secondary level that would take away the right of francophone and allophone students to attend CEGEPs in the official language of their choice.

• An outright ban on the right of francophone and allophone children to transfer from private English-language schools to the public English-language system.

According to legal experts, the odds that the PQ’s identity agenda — in whole or in part — would not pass a Charter test are high.

That is no accident. If it is returned to power, the PQ is hoping to rekindle sovereigntist passions by demonstrating that Canadian institutions are designed to stifle Quebec’s distinctive identity.

But if the recent past is any indication, the PQ may be setting itself up for a fall.

It has long been a sovereigntist mantra that the Supreme Court is a federal instrument designed to clip Quebec’s wings. That notion was burnished by the Court-prescribed amputation of a number of the original sections of Bill 101 in the 1980s.

But as opposed to the language law — whose support in Quebec extends beyond the ranks of sovereigntist supporters — Marois’s current prescriptions are controversial within her own movement.

The last time the Supreme Court was called upon to tread on ultra-sensitive Quebec territory, it was the sovereigntist leadership that ended up stranded in a minefield.

When Jean Chrétien referred the issue of Quebec’s right to secede to the top court in the lead-up to drafting of the federal clarity act, then-premier Lucien Bouchard expected the move to provoke a backlash of such magnitude that the conditions for a sovereigntist referendum victory would fall in place.

The opposite happened. Instead of rushing to the sovereigntist barricades, Quebecers pulled further back.

In the federal election that followed the court reference and the adoption of the Clarity Act in 2000, Chrétien’s Liberals beat the Bloc Québécois in the popular vote. That result prompted Bouchard’s exit from politics.

If Harper had to choose the terrain of a future engagement against a battle-hungry sovereigntist government, he would probably pick the Supreme Court.

It is better regarded in Quebec than either the PQ or his own Conservative government and the prime minister’s upcoming appointment to the bench should be designed to keep it that way.

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